Judge: David A. Hoffer, Case: 30-2022-1260999, Date: 2023-01-09 Tentative Ruling

The unopposed motion by defendant Rosalie Baclet (“Rosalie”) to expunge Notices of Pendency of Action [Lis Pendens] filed by Jeffrey Baclet (“Jeffrey”) is GRANTED.

Rosalie’s unopposed Request for Judicial Notice of Exs. 1-6 is GRANTED.

Code of Civil Procedure section 405.30 authorizes a party or nonparty “with an interest in the real property” to file a motion to expunge the lis pendens. The court “shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim” (§ 405.31), or the real property claim “lacks evidentiary merit.” (Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 808). The party opposing a motion to expunge a lis pendens has the burden to show that a real property claim has been alleged and has probable validity based upon a preponderance of the evidence. (Code Civ. Proc., §§ 405.30, 405.32.)

For a motion to expunge lis pendens, the court goes through a two-step analysis. First, the court looks to see if the complaint contains a property claim. This requires the plaintiff to prove the existence of a real property claim based on the allegations in the complaint. (Code Civ. Proc., § 405.31; Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149.) Code of Civil Procedure section 405.31 provides, in pertinent part: “the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.

Second, the court evaluates the merits of the claim, which involves an evidentiary hearing. (Kirkeby v. Superior Court (2004) 33 Cal.4^th 642, 651.) Under Code of Civil Procedure section 405.32, a claimant must establish the probable validity of the real property claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32; Howard S. Wright Const. Co. v. Superior Court (2003) 106 Cal.App.4th 314, 317.) Code of Civil Procedure section 405.32 provides, in pertinent part: “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” The burden is on claimant to establish the probable validity of the underlying real property claim by a preponderance of the evidence. (Code Civ. Proc., § 405.30; Howard S. Wright Const. Co., 106 Cal.App.4th at 319.)

As the claimant, Jeffrey has the burden to establish a real property claim. He has not done so and has not filed an opposition to the Motion to Expunge. Here, Jeffrey’s Complaint has been disposed of by way of Rosalie’s demurrer which was sustained without leave to amend on August 4, 2022 on the grounds that plaintiff’s claims were barred by res judicata. Thus, Jeffrey does not have any real property claims.  

Because Jeffrey cannot meet the first step, the court need not go any further in the two-step analysis. However, assuming arguendo that Jeffrey did establish a real property claim, the motion would still be granted as he has failed to demonstrate the probable validity of these claims by a preponderance of the evidence. (See, CCP § 405.32.) Jeffrey has failed to submit any evidence in opposition.

Accordingly, Rosalie’s motion to expunge is granted. Rosalie is ordered to submit a Proposed Order to reflect the accurate recording dates of the lis pendens.

The Court orders moving party to give notice of this ruling.